An Excess of Pity: Why We Fail to Deport Those Whom We Should Deport

A country – England, Italy, Switzerland, Egypt, South Korea, Uruguay – is, among many things, a home. It is nice to welcome people into one’s home. But it is not very nice when guests overstay their welcome, or cause trouble. When that happens, the homeowner is within his or her rights to eject the now-unwanted guest.

This is not a difficult concept to grasp, and it is what lies behind the desire to control national borders and determine who should, or should not, be permitted to come to a country and remain there. And in my experience, having lived as an immigrant in another country for a large chunk of my adult life, most immigrants intuitively understand and accept this, and think of it as normal. I certainly never had a problem in principle with the idea, when living in Japan, that if I committed a criminal offence, overstayed my visa, or lost my employment, I would have to leave the country, for all that it would have been regrettable.

The intelligentsia across the West has, however, been studiously ignoring what intuition should have been telling them for some decades now. It is easy to attribute this to status-signalling, or over-exuberant ‘wokeness’. No doubt this plays a part in the problem. And I have written extensively about the topic before as a matter of political philosophy. But, ultimately, at the coal face it boils down to something simpler. When it comes down to actual, concrete circumstances, there is a reluctance – even a squeamishness – about taking a decision which may end up inflicting harm. To put it even more bluntly, our societies have become characterised by a reluctance to take tough decisions. This is generally evident in all aspects of life. And it affects the judiciary just as much as it does, say, parents or schoolteachers.

A recent, highly illustrative example came across my desk just the other day. In the recent Upper Tribunal decision of AA v Secretary of State for the Home Department [2025] UI-2024-003512, a decision to deport an Afghan immigrant, AA, was successfully appealed on the grounds that he had a “well-founded fear of persecution” if returned to Afghanistan. This, in the judge’s view, would therefore have violated his rights under Article 3 of the European Convention on Human Rights (ECHR) not to made subject to torture or inhuman or degrading treatment.

The facts are not stated clearly in the judgment (tribunal decisions are disgracefully difficult to parse, at times) but it seems to be the case that back in 2010 AA was originally supposed to have been deported to Iran, after having told the authorities – apparently having entered the country unlawfully as a child some time before that – that he was Iranian. For some reason that is not made clear, he seems to have remained in the UK, and in 2022 (a mere 12 years later) after having been identified for removal, changed his story, and claimed to be an Afghan national who would face a violation of his Article 3 rights if returned to that country “due to his mental health, his drug addiction and [the fact] that he would be destitute”.

AA, you see, suffers from PTSD and depression, is a long-term heroin addict currently receiving a prescribed does of methadone, and is apparently homeless. He has also been in the UK for a long time and would not look or behave like a practising Muslim. He would therefore potentially face “inhuman or degrading treatment” if returned to Afghanistan for a number of reasons:

He has a “membership of a particular social group, being that of a person with mental health and addiction issues or who is likely to be perceived to be Westernised”. (One has to love the implication that having mental health and addiction issues is a feature of “being Westernised” – who said Upper Tribunal judges didn’t have a sense of humour?)
On the balance of probabilities, he “does in fact fear” persecution in Afghanistan “given his long term drug addiction and mental health issues” and given that “he is not a very religious person”.
There is a risk of harm to him on return to Afghanistan because drug addicts there are “forced to go cold turkey without access to methadone or counselling”, because “mental health support” is lacking in the country, because he “may be seen as non-Afghani or non-Muslim”, and so on.
There would be an “absence of state protection”, i.e., from the local police such as they exist.
AA would be unlikely to be able to relocate from Afghanistan after having been returned there.

Now, let’s be as generous as we can: one feels sorry for AA, as one should feel sorry for anybody who has strayed down the wrong path in life and ended up in a bad situation. There but for the grace of God go all of us; he is a human being and is entitled to pity and compassion accordingly. And one also feels a sense of shame at the frivolity and hubris of the British state for allowing the situation to arise in the first place that a child from Afghanistan can arrive here unlawfully, be allowed to remain indefinitely, but be allowed to go off grid for over a decade and fall as a consequence into drug addiction and destitution. How much more humane would it have been simply to have non-porous borders?

But the problem is that there are millions upon millions of other people in the world who it is also proper to feel sorry for, and the UK is a small and crowded country with an already unaffordable welfare state that is facing great economic problems and which would rapidly beggar itself if it allowed all of those people to come here to live. To extend the analogy of the home, it is a house which has become rather ramshackle and dilapidated, whose owners already work too many hours and spend too much money supporting family members who are incapable of or unwilling to work, and which is running out of rooms in which to house all of the waifs and strays who have been allowed in to live. The last thing it needs is to take on more and more problem cases, in other words. It has troubles enough of its own.

Leaving legal obligations to one side, then (although I cannot resist reiterating a point I have made repeatedly on this Substack before, which is that it is not really the ECHR’s fault that our judges take such a slovenly and sloppily generous approach to interpreting its provisions, as here), the country needs to have a much more clear-eyed, and – I am afraid to say – ruthless approach when it comes to these matters. Pity is, generally speaking, a laudable emotion. But it is not an end in itself. And there are times when pity has to be felt, but ignored in the interests of other objectives – such as, for example, national safety, security and the public purse.

One can talk, in other words, about legal changes, and one can elucidate the reasons why the British welfare state seems so insatiably desperate for ever more sheep to add to its flock as a matter of political philosophy. But ultimately the problem, more than anything else, comes down to a societal unwillingness to fail to be nice. When a distasteful decision is to be made, we collectively cringe. And so the house gets fuller and fuller, and falls into worse and worse disrepair, and there is less and less of everything to go round for its growing band of disparate inhabitants. We do not have the wherewithal to say, with enough strength and fortitude, that we’re sorry for the rest of the world’s troubles, but our beloved home is in serious danger of collapse, and we therefore have a big enough repair job on our hands as it is. We want to be welcoming to people who will contribute and help with the restoration work. But we don’t want bad guests who will take advantage of our generosity when we can least afford it.

This problem Britain has – the problem of small boats, of indefinite leave to remain, of the ECHR, of non-refoulement, of visa overstayers, of people coming to the country without the desire to integrate – will, more than anything else, only be solved when we have a judiciary, and a governing class in general, which is willing to say, very simply and squarely, to a man like AA: “I pity you. You have been unfortunate. Life has dealt you a rough hand. If you are sent back to Afghanistan, if that is indeed where you are from, you may face much greater hardships than you do here. It may go badly. But I am afraid that you have no legal right to be here and you will have to go back anyway.”

That will figuratively have to happen in the form of legal changes, of course. But it will also have to happen in a more visceral way – through people being willing to grit their teeth and set pity to one side. One can pity somebody without taking responsibility for his or her care indefinitely; one can pity somebody while informing him or her of bad news. Pity for a stranger does not trump love for one’s family; pity does not trump the national interest. And it is not in the national interest for this situation, in which illegal migration goes not only unpunished but rewarded, to continue.

How we get to that position is, however, another question, and one fears that it may only happen when the situation has become so desperate that attitudes naturally harden. By then it might even be too late. That this should be a realistic possibility – and it is – is a bleak reality for the country to have to confront. It is time, though, to start confronting it, and to think seriously about whether it is pity that ought to govern immigration law, or other more pressing imperatives. We are pitying ourselves into disorder and social decay. We need to be willing not to be nice.

Dr David McGrogan is an Associate Professor of Law at Northumbria Law School. You can subscribe to his Substack – News From Uncibal – here.